Zuck v. Turner Harness & Carriage Co.

80 S.W. 967, 106 Mo. App. 566, 1904 Mo. App. LEXIS 400

• Court: Missouri Court of Appeals
• Decided: May 16, 1904
• Status: Published

Opinion

BROADDUS, J.

On March 11, 1901, plaintiff, a minor, but who claimed to defendant company to be twenty-one years old, purchased of said defendant a buggy and one set of buggy harness, in payment for which he executed one note for $40 with eight per cent interest, due September 1,1901, and a second note for a similar amount, bearing the same rate of interest, due January 1, 1902, securing the same by executing a chattel mortgage conveying to defendant the buggy and harness and also the mare in dispute. Default being made in the payment of the notes, the defendant took possession of the buggy and mare but not the harness, the latter being in the possession of plaintiff at the time of the trial. The latter replevined the mare without at any time before judgment tendering the harness back to defendant.

The cause was tried by the court without the aid of a jury. The finding was for defendant. No instructions were asked and none were given.

The finding and judgment of .the court must be upheld.

In Downing v. Stone, 47 Mo. App. 144, it was held —and many authorities were cited to sustain the holding — that, “if an infant seeks to avoid or rescind an executed contract of sale, he must first restore all that he has received on that account if he has it.” And that was a case like this where the person sought to avoid the contract during his minority.

Affirmed.

All concur.